DPP v Di Nunzio - [2004] VSCA 78

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 3 of 2004

DIRECTOR OF PUBLIC PROSECUTIONS
	v.
ANTHONY DI NUNZIO

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JUDGES:	CHARLES, BATT and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 April 2004
DATE OF JUDGMENT:	7 May 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 78

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CRIMINAL LAW – Sentencing – Crown appeal – Culpable driving (by negligence and under influence), negligently causing serious injury and recklessly endangering life – Driving drunk wrong way on freeway while disqualified – Prior convictions for exceeding prescribed concentration (3), driving while disqualified and while unlicensed – Respondent aware of drinking problem – Drove as pleased despite disqualification – Guilty pleas, remorse, etc. - 7½ years’ imprisonment (including 7 for culpable driving) and 5-year non-parole period manifestly inadequate – Re-sentenced (by majority) to total of 8½ years with 6½-year non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the D.P.P.	Mr G. Horgan S.C.	Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondent	Mr O.P. Holdenson Q.C.	Clarebrough Pica

CHARLES, J.A.:

The circumstances of the offences, the prior criminal history of the respondent, and the arguments of counsel are all set out in the reasons prepared by Batt, J.A., and I gratefully adopt his Honour’s statement of them. I agree with his Honour that the sentencing judge erred in giving insufficient weight to specific deterrence in light of the respondent’s antecedent criminal history and the other aggravating factors summarised in par.[27] hereafter, and that in consequence the sentencing judge was led to impose a sentence on count 1 which was manifestly inadequate.

The respondent’s prior criminal history of driving offences before 24 November 2002 was extraordinary and showed blatant and continuing disregard for the law. By 22 November 2001 he had been convicted of driving a motor vehicle whilst having a blood alcohol content exceeding .05% on three separate occasions. He had been disqualified from holding a driving licence on four separate occasions. He had been found guilty of a variety of other traffic offences including exceeding the speed limit, driving in a careless manner, and disobeying a traffic control signal. In his record of interview conducted by police officers on 20 February 2003 the respondent said he had owned the Ford Probe motor car which he was driving on the night of Sunday 24 November 2002 for some two years beforehand. It therefore had been purchased in about February 2001. On 22 November 2001 he had been convicted of his third offence of driving with a blood alcohol content exceeding .05%, and his licence was cancelled and he was disqualified from obtaining any licence for two years effective from 5 August 2001. In the record of interview the respondent admitted that in the first year he had the car, he drove every day, and in the second year was driving to work and a few times at night. It follows that by 24 November 2002, he had been driving his car on virtually a daily basis, notwithstanding his disqualification, for at least…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Di Nunzio

Details

AGLC: Director of Public Prosecutions v Di Nunzio [2004] VSCA 78
Case: [2004] VSCA 78
Decision Date: 7 May 2004

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions versus Di Nunzio, the respondent was convicted for driving under the influence of alcohol, driving negligently, causing serious injury, and recklessly endangering life. The incidents occurred when the respondent, who was disqualified from driving, drove the wrong way on a freeway while intoxicated. The respondent had a history of prior convictions for exceeding the prescribed alcohol concentration, driving while disqualified, and driving without a license. Despite being aware of his drinking problem, he chose to drive, resulting in a serious accident. The respondent entered guilty pleas and expressed remorse, but the Crown appealed the original sentence of 7½ years' imprisonment, including a 7-year term for culpable driving, with a 5-year non-parole period. The Crown argued that the original sentence was manifestly inadequate.

The court was required to determine whether the original sentence was manifestly inadequate and, if so, to impose a more appropriate sentence. The court had to consider the severity of the offence, the respondent's history of prior convictions, his awareness of his drinking problem, and his decision to drive despite being disqualified. The court also had to balance the need for deterrence and denunciation against the respondent's expressions of remorse and other mitigating factors.

The majority of the court found that the original sentence was indeed manifestly inadequate. They considered the severity of the offence, the respondent's history of prior convictions, and his decision to drive despite being aware of his drinking problem and being disqualified. The court emphasised the need for deterrence and denunciation, as well as the protection of the community. The court re-sentenced the respondent to a total of 8½ years' imprisonment, with a 6½-year non-parole period. The majority of the court found that this sentence appropriately balanced the need for punishment, deterrence, and denunciation with the respondent's expressions of remorse and other mitigating factors. The court also considered the impact of the sentence on the victim and the community.

Orders